Citation Nr: 1721047
Decision Date: 06/09/17 Archive Date: 06/21/17
DOCKET NO. 13-18 740A ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania
THE ISSUES
1. Entitlement to service connection for a back disability.
2. Entitlement to service connection for residuals of an upper left torso injury.
REPRESENTATION
Appellant represented by: New Jersey Department of Military and Veterans' Affairs
ATTORNEY FOR THE BOARD
Hammad Rasul, Associate Counsel
INTRODUCTION
The Veteran served on active duty from November 1973 to January 1974.
These matters come to the Board of Veterans' Appeals (Board) on appeal from a February 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania.
In April 2015, the Board granted the Veteran's petition to reopen the previously denied service connection claim for a low back disability and remanded the claims listed on the title page.
The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required.
REMAND
The Board has reviewed the claims file and determined that additional development is warranted.
With regards to service connection for residuals of an upper left torso injury, the Board instructed the AOJ to schedule the Veteran for a VA examination. A VA examination was requested by the AOJ on December 13, 2016 through mail and then subsequently over the phone on January 11, 2017. The AOJ cancelled the examination request for the Veteran's failure to respond. In a February 2017 statement in support of his claim, the Veteran reported that he did not receive the AOJ's request to schedule an examination because he was in Puerto Rico from December 10, 2016 to January 15, 2017. The Veteran attached his boarding pass and itinerary as proof. In light of the Veteran's contentions, the Board finds that good cause has been shown for his failure to respond to the AOJ's requests to schedule a VA examination. Hence, a remand is necessary to again attempt to afford the Veteran a VA examination for residuals of an upper left torso injury.
With regards to service connection for a back disability, in the April 2014 remand, the Board instructed the AOJ, among other things, to arrange for the Veteran to undergo a VA examination, by an appropriate physician, at a VA medical facility. The examiner was to render an opinion, consistent with sound medical judgment, as to whether it was at least as likely as not (i.e., there was a 50 percent or greater probability) that the disability began in service, was caused by service, or is otherwise related to service, to include the Veteran's report of an in-service injury incurred falling from the monkey bars during basic training.
In rendering the requested opinion, the examiner was directed to specifically provide a complete rationale for any opinion offered.
A review of the record reveals that pursuant to the remand, the Veteran was examined in October 2015. The examiner opined that the Veteran's back disability is not related to service because there is no documentation to support an injury in service and that treatment records do not reflect that the Veteran has been treated for a back injury since the 1980s. However, in so concluding, the examiner did not fully account for the competent lay statements from the Veteran that he has had back pain for years from when he fell and injured his back in training during service. Although the examiner noted that Veteran sought treatment in the 1980s, she also did not account for the Veteran's complaint of low back pain in January 2001 or several other complaints and treatment for low back pain from July 2013 onwards. Additionally, in a May 2013 treatment record, the Veteran hinted at self-medicating his low back pain with "street drugs."
Therefore, it appears that the October 2015 VA examiner primarily relied on the absence of documentation in the service treatment records as a basis for her negative opinion, which is improper. Buchanan v. Nicholson, 451 F.3d 1331, 1336 n.1 (Fed. Cir. 2006) (noting that VA's examiner's opinion, which relied on the absence of contemporaneous medical evidence, "failed to consider whether the lay statements presented sufficient evidence of the etiology of [the veteran's] disability such that his claim for service connection could be proven without contemporaneous medical evidence"). Furthermore, even when the regulatory requirements for a disability are not shown at separation, service connection may still be established through probative evidence that the current disability is causally related to service. 38 C.F.R. § 3.303(d) (providing for service connection for a disease first diagnosed after service).
Based on the foregoing, the Board finds that the October 2015 opinion is inadequate to determine whether the Veteran's back disability is related to service. Consequently, a new medical opinion is therefore warranted. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate).
Accordingly, the case is REMANDED for the following action:
1. After all outstanding records have been associated with the claims file, schedule a VA examination to identify any upper left torso disabilities. The record, to include a copy of this remand, must be made available to and be reviewed by the examiner. Any indicated evaluations, studies, and tests should be conducted.
For any diagnosed upper left torso disability, the examiner should state whether it is at least as likely as not (at least a 50 percent probability) that the disability began in service, was cause by service, or is otherwise related to service, to include the Veteran's report of an in-service injury incurred falling from the monkey bars during basic training.
The claims file, including a copy of this remand, must be made available to the physician for review on conjunction with the opinion and examination.
The examiner is advised that the Veteran is competent to report symptoms, treatment, and injuries, and that his reports must be taken into account in formulating the requested opinions.
The examiner should provide a complete rationale for any opinion given.
2. Obtain an opinion from an appropriate physician. The claims file, including a copy of this remand, must be made available to the physician for review on conjunction with the opinion and examination.
The physician should provide an opinion as to whether it is at least as likely as not (i.e., a 50 percent probability or greater) that the Veteran's currently diagnosed back disability had its onset in service or is otherwise related to the Veteran's military service.
In rendering the opinion above, the physician should discuss and comment on the Veteran's lay statements and the various treatment records since service in which the Veteran complained of or sought treatment for a back disability and/or low back pain.
The physician is advised that the Veteran is competent to report symptoms, treatment, and injuries, and that his reports must be taken into account in formulating the requested opinions.
The physician should provide a complete rationale for any opinion given.
The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999).
These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014).
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Jonathan Hager
Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2014), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2016).